[ v24 p87 ]
The decision of the Authority follows:
24 FLRA No. 10 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2478 Union and U.S. COMMISSION ON CIVIL RIGHTS Agency Case No. 0-NG-1068 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals. We hold Union Proposal 1 to be nonnegotiable and Union Proposal 2 to be negotiable. II. Union Proposal 1 Article 29, Section 3. (Disciplinary Actions) When it is determined by the Employer that disciplinary action is necessary, the employee will be promptly informed of the reasons why the action is being taken. Such action will be accomplished with dispatch and normally be initiated within 30 days after management becomes aware of the alleged occurrence. In no case will the Employer bring disciplinary action against an employee for occurrences which are alleged to have happened more than one year previously. (Only the underscored portion is in dispute.) A. Positions of the Parties The Agency contends that this proposal is outside the duty to bargain because it interferes with management's right to discipline employees, under section 7106(a)(2)(A) of the Statute. The Union contends that the proposal would merely protect employees' rights by insuring prompt disciplinary action and would not violate the Agency's right to discipline its employees. It also contends that by negotiating over the proposal the Agency would not endanger its ability to proceed with disciplinary actions when such actions are required by law, as the parties' agreement contains provisions to that effect. B. Analysis The proposal would prohibit the Agency from taking any disciplinary action against employees for occurrences alleged to have happened more than one year previously. In our opinion, this proposal is to the same effect as a provision found nonnegotiable in National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (Provision 2), affirmed sub nom. National Federation of Federal Employees, Local 615 v. FLRA, No. 85-1299 (D.C. Cir. Sept. 12, 1986), which required that investigations of incidents for which disciplinary action may be taken normally be initiated within 60 days of the incident or within 60 days after the employer becomes aware of the incident. The Authority noted that by establishing a contractual "statute of limitations" which would preclude it from investigating incidents which may result in the disciplining of employees, the provision would, in certain circumstances, prevent the agency from acting at all with respect to that right. See also American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Union Proposal 3). The proposal in this case, likewise, would establish a contractual limitation which would, in certain circumstances, prevent the Agency from acting at all with respect to its right to discipline employees. As a result of this analysis, the Authority finds it unnecessary to address the Union's additional contention. C. Conclusion For the reasons given here and in the cases cited in the analysis, Union Proposal 1 is inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and is, therefore, outside the duty to bargain. III. Union Proposal 2 Article 32, Section 4. (Arbitration) If for any reason the Employer refuses to participate in the selection of an arbitrator, the Federal Mediation and Conciliation Service shall be empowered to make a direct designation of an arbitrator to hear the case. A. Positions of the Parties The Agency did not include in its statement of position any contentions in support of its allegation that this proposal is nonnegotiable. The Union contends that the proposal merely requires the Agency to participate in the arbitration process, as required by section 7121(b)(3)(C) of the Statute. /1/ B. Analysis and Conclusion This proposal seeks to empower the Federal Mediation and Conciliation Service (FMCS), an entity not a party to the collective bargaining agreement, to directly designate an arbitrator to hear a case if the Agency refuses to participate in the selection of an arbitrator. As indicated above, the Agency provides no support for its allegation that the proposal is nonnegotiable, nor does it appear to be so. We note that 29 C.F.R. Section 1404.13(c), /2/ issued by the FMCS pursuant to Title II of the Labor-Management Relations Act of 1947 (Pub. L. 80-101) as amended in 1959 (Pub. L. 86-257) and 1974 (Pub. L. 93-360), is applicable to "all persons or parties seeking to obtain from FMCS either names or panels of names of arbitrators in connection with disputes which are submitted to arbitration or fact-finding." That provision expressly states that the FMCS will make a direct appointment of an arbitrator when authorized by an applicable collective bargaining agreement. Thus, the proposal appears to be fully consistent with FMCS's regulations. Since the Agency has made no showing, nor is it otherwise apparent, that this proposal is nonnegotiable, we conclude that Union Proposal 2 is within the duty to bargain. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposal 2. /3/ The petition for review as it relates to Union Proposal 1 is dismissed. Issued, Washington, D.C., November 19, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7121(b)(3)(C) of the Statute requires that any negotiated grievance procedure must include procedures that "provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency(.)" (2) 29 C.F.R. 1404.13(c) provides, in pertinent part, as follows: (c) The Service will, on joint or unilateral request of the parties, submit a panel or, when the applicable collective bargaining agreement authorizes, will make a direct appointment of an arbitrator(.) (3) In finding this proposal within the duty to bargain, the Authority makes no judgment as to its merits.